State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 9, 2014
________________________________
JOHN D. OVEROCKER JR. et al.,
Respondents,
v
516957
MEMORANDUM AND ORDER
DANIEL J. MADIGAN et al.,
Appellants.
________________________________
Calendar Date:
Before:
November 22, 2013
Lahtinen, J.P., Stein, McCarthy and Garry, JJ.
__________
McNamee, Lochner, Titus & Williams, PC, Albany (John J.
Privitera of counsel), for appellants.
Tully Rinckey, PLLC, Albany (Douglas J. Rose of counsel),
for respondents.
__________
Garry, J.
Appeal from an order of the Supreme Court (Hummel, J.),
entered September 17, 2012 in Rensselaer County, which, among
other things, denied defendants' motions for partial summary
judgment.
Plaintiffs keep horses in a fenced pen on their property in
the Town of Pittstown, Rensselaer County, where they allege that
horses have been kept since before they purchased the property in
1989. Defendants, who purchased a neighboring property in 1994,
hold a driveway easement at the edge of plaintiffs' property and
built a storm drain under the driveway in either 2005 or 2009.
In 2010, plaintiffs commenced this action raising claims pursuant
to RPAPL article 15 and for trespass to real property, alleging
that the storm drain extends beyond the boundaries of defendants'
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easement and onto plaintiffs' unencumbered property. Defendants
answered and asserted counterclaims for private nuisance and per
se nuisance based on the proximity of plaintiffs' horse pen to
their residence, in alleged violation of a local law.
Thereafter, defendants moved for partial summary judgment on the
per se nuisance counterclaim and for partial summary judgment
dismissing plaintiffs' trespass cause of action. Plaintiffs
cross-moved for summary judgment dismissing the per se nuisance
counterclaim. Supreme Court denied defendants' motions and
granted plaintiff's cross motion. Defendants appeal.
Supreme Court properly denied defendants' motion for
partial summary judgment dismissing plaintiffs' trespass claim.
Defendants, as the movants, bore the initial burden to submit
evidentiary proof in admissible form demonstrating their
entitlement to judgment as a matter of law – a burden that cannot
be met by pointing to deficiencies in plaintiffs' proof (see
DiBartolomeo v St. Peter's Hosp. of the City of Albany, 73 AD3d
1326, 1327 [2010]; Rothbard v Colgate Univ., 235 AD2d 675, 678
[1997]). To document their claim that the storm drain was
constructed within the bounds of their easement, defendants
submitted their deed, which does not mention the storm drain,
photographs of the storm drain that do not reveal its location,
and a survey of defendants' property that does not show the storm
drain and, in any event, is inadmissible as it was not supported
by a surveyor's affidavit or other foundational proof (see
Bergstrom v McChesney, 92 AD3d 1125, 1127 [2012]). Additionally,
defendants submitted an affidavit of defendant Daniel J. Madigan
that neither indicates the storm drain's specific location nor
asserts that it is contained within defendants' easement. As
these submissions do not establish that no part of the storm
drain is located on plaintiffs' unencumbered property, defendants
did not meet their prima facie burden to establish their
entitlement to summary judgment dismissing the trespass claim,
without regard to the adequacy of plaintiffs' opposition (see
Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985];
Patterson v Palmieri, 284 AD2d 852, 853 [2001]; Roushia v Harvey,
276 AD2d 970, 971-972 [2000]).
The trespass claim is not time-barred even if the drain was
constructed, as defendants contend, in 2005, as a trespass that
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consists of an unlawful encroachment on the property of another
is a continuing wrong that gives rise to successive causes of
action (see Bloomingdales, Inc. v New York City Tr. Auth., 13
NY3d 61, 66 [2009]; Petti v Town of Lexington, 92 AD3d 1111,
1114-1115 [2012]). We further reject defendants' claim that the
action must be dismissed for failure to join a necessary party –
namely, a third party who holds another easement over the same
driveway. While this third party's rights might have been
affected if this dispute were related to use of the easement (see
e.g. Schaffer v Landolfo, 27 AD3d 812, 812 [2006]), plaintiffs'
trespass claim does not involve easement rights nor any claim
against the third party, but instead clearly asserts that the
storm drain is located on their unencumbered property.
Defendants thus failed to show that the third party might be
inequitably affected by a judgment on the trespass claim or that
joinder is required to permit complete relief to be accorded (see
CPLR 1001 [a]; compare Buckley v MacDonald, 231 AD2d 599, 600
[1996]).
Finally, defendants contend that Supreme Court erred in
denying their motion for summary judgment on their counterclaim
for per se nuisance and in granting plaintiffs' cross motion for
summary judgment dismissing this counterclaim.1 The per se
nuisance claim is based upon the undisputed location of
plaintiffs' horse pen about 100 feet from defendants' home, in
alleged violation of a local law that requires such pens to be
separated from dwellings by at least 500 feet (see Local Law No.
1 [2010] of Village of Valley Falls § 9). We disagree with
defendants that the declaration in the local law that such a
violation is a "nuisance" (see Local Law No. 1 [2010] of Village
of Valley Falls § 7) is sufficient, without more, to establish
1
There is no significance in Supreme Court's
misidentification of the claim it was dismissing as the "second
counterclaim for private nuisance." The second counterclaim in
fact alleged per se nuisance, the parties' motions were confined
to that counterclaim, and the court's analysis clearly addressed
the per se nuisance claim.
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their claim of nuisance per se.2 A showing that the pen is
unlawful excuses defendants only from proving that plaintiffs'
actions were negligent or intentional; the other elements of a
nuisance cause of action must still be shown (see State of New
York v Fermenta ASC Corp., 238 AD2d 400, 403 [1997], lv denied 90
NY2d 810 [1997]). A private nuisance claim requires a showing of
"intentional action or inaction that substantially and
unreasonably interferes with other people's use and enjoyment of
their property" (Nemeth v K-Tooling, 100 AD3d 1271, 1272 [2012];
see Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564,
570 [1977]; Langan v Bellinger, 203 AD2d 857, 857-858 [1994]; see
also Guzzardi v Perry's Boats, 92 AD2d 250, 254 [1983]).
Defendants did not prove entitlement to summary judgment on the
per se nuisance claim, as they relied exclusively on the alleged
local law violation and offered no proof that the horse pen's
placement caused a substantial or unreasonable interference – and
notably, such determinations "ordinarily turn[] on questions of
fact" (Futerfas v Shultis, 209 AD2d 761, 763 [1994] [internal
quotation marks and citation omitted]).
We agree with defendants that plaintiffs's cross motion for
summary judgment should not have been granted. Seeking to prove
that the horse pen is not unlawful, plaintiffs submitted minutes
from a municipal board meeting and a letter from a code
enforcement officer stating that the local law – passed in 2010 –
is not retroactive and does not apply to the preexisting horse
pen. These unsworn submissions do not constitute evidentiary
proof in admissible form sufficient to support a summary judgment
motion (see Ulster County, N.Y. v CSI, Inc., 95 AD3d 1634, 1636
[2012]; Matter of Patricia YY. v Albany County Dept. of Social
Servs., 238 AD2d 672, 674 [1997]). Nevertheless, it remains
defendants' burden to establish the horse pen's illegality at
trial. "The general rule against interpreting statutes or
ordinances retrospectively, especially where vested rights are
involved, applies to zoning ordinances" (Matter of Town of Islip
2
"'There is perhaps no more impenetrable jungle in the
entire law than that which surrounds the word "nuisance"'"
(Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564,
565 [1977], quoting Prosser, Torts at 571 [4th ed]).
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v Caviglia, 73 NY2d 544, 560 [1989]). Municipalities have power
to restrict the preexisting use of property to keep animals for
recreational purposes (see People v Miller, 304 NY 105, 109
[1952]). Here, however, the municipality has not enforced its
local law against plaintiffs, and the text of the law does not
reveal its applicability to prior nonconforming uses.
Accordingly, this issue remains to be resolved (compare Nemeth v
K-Tooling, 100 AD3d at 1274-1275).
Lahtinen, J.P., Stein and McCarthy, JJ., concur.
ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as granted plaintiffs' cross
motion for summary judgment dismissing defendants' counterclaim
for per se nuisance; cross motion denied; and, as so modified,
affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court